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May 7, 2003


The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge

Decision and Order

I. Introduction

Pro se plaintiff, Anthony M. Garraway, has filed multiple civil actions in the Northern District of New York, some of which are currently pending and at different stages in the litigation process.*fn1 His in forma pauperis applications have been granted in each pending case. Although now incarcerated, Garraway's complaints were filed before he was imprisoned and have nothing to do with prison conditions. Therefore, his cases are not governed by Local Rule 72.3(c) which operates as an automatic referral of prisoner civil rights cases to magistrate judges for decision and order on non-dispositive matters, and for report and recommendation on dispositive matters. See 28 U.S.C. § 636.*fn2 Instead, these cases are governed by Local Rules 40.1, 72.2(a)(d)(5) and 72.3(a) which authorize magistrate judges to manage civil cases by conducting conferences, entering scheduling orders, controlling discovery, and resolving non-dispositive motions.

Although Garraway was at liberty when he filed his suits, the court learned on December 5, 2002, that he was then incarcerated in the Broome County Jail and subject to an impending state prison sentence.*fn3 At the time, Garraway had filed, or attempted to file, numerous requests related to his various suits, most of which failed to comply with the Local and Federal Rules of Civil Procedure. Furthermore, it was abundantly clear that Garraway lacked a fundamental understanding of the rules and procedures governing his litigation despite his possession of this district's Pro Se Handbook and Critical Notice and despite a prior conversation with this court during a Rule 16 personal appearance (see Fed.R.Civ.P. 16). Since Garraway was incarcerated and his personal situation in transition, the court exercised its authority to manage litigation, and issued a stay of his cases. Embodied in a minute order, the court's stay stated:

All further progress in all Garraway cases is stayed pending further order of this court . . . Except in 9:99-CV-1913 in which Garraway must respond to the motion by December 12, 2002, as previously ordered.
See 1117 at Dkt. No. 9.

Since Garraway has now reached his final destination, the court issues this decision in order to: clarify and vacate the December 5, 2002, stay; clarify the status of Garraway's pending litigation; resolve outstanding management and scheduling issues; resolve a Garraway recusal motion; and, apprize Garraway of some of his responsibilities under the Local and Federal Rules, especially in light of his repeated failure to abide by those rules and court orders.

II. Clarification and Dissolution of the December 5, 2002, Stay

The court begins with clarification of its prior stay because the specific language referred to "all Garraway cases." In retrospect, that choice of language was unfortunate since the court was unaware that Garraway was a plaintiff in two additional Northern District cases, Garraway v. Mollen, 3:02-CV-613, and Garraway v. Edwards, 3:00-CV-1710.

First of all, it should have been crystal clear that Mollen (613) was unaffected by the stay since it was previously dismissed on May 20, 2002, by decision and order of Thomas J. McAvoy, District Court Judge. See 613, Dkt. No. 3. Furthermore, the stay was not meant to effect Edwards (1710), and it is clear that it did not. In Edwards, judgment was entered for Garraway on July 19, 2002, following a jury verdict in his favor. On July 31, his standby trial counsel, Remy Perot, Esq., filed a motion for attorney fees. 1710, Dkt. No. 51. On August 8 and August 22, 2002, Edwards and Garraway filed appeals with the Second Circuit. 1710, Dkt. Nos. 52, 55. On September 27, Judge McAvoy took the motion for attorney fees on submit, and issued a decision and order on February 21, 2003. 1710, Dkt. Nos. 65, 68. Garraway's appeal is now pending before the Second Circuit Court of Appeals. See 1710, Min. Entry, Apr. 15, 2003. Thus, Edwards has progressed as it should have.

This court's December 5 stay was never designed to impact either of these cases, and it is obvious that it did not. Furthermore, Garraway has now reached his final destination, and there is now no reason to continue the stay. Accordingly, the court vacates it, effective as of the date of the filing of this decision and order.

III. The Status of Garraway Litigation in Cases Now Pending Before This Court
A. Garraway v. Morabito (9:99-CV-1913)

This civil rights action was filed by Garraway and Kenneth D. Harvey on November 4, 1999, in Binghamton, was given a Binghamton filing division number ("3"), and jointly assigned, as are all civil cases in the district, to a District Court Judge (Hon. Lawrence E. Kahn) and a magistrate judge (this court).*fn4

After numerous delays caused by plaintiffs' defective complaint and failures to notify the court of address changes, issue was finally joined almost one year later when Morabito answered on October 26, 2000. See Morabito, 1913, Dkt. Nos. 4-5, 7-9. Consistent with this court's practice of scheduling in person Rule 16 conferences in pro se litigation, the court conducted that conference on March 19, 2001, and issued a Uniform Pretrial Scheduling Order (UPSO), setting deadlines for various stages of the litigation, including a motion filing deadline. See Fed.R.Civ.P. 16; see also, Morabito, 1913, Dkt. Nos. 16-17. During that conference, the court personally explained the practices, procedures and rules governing the progress of civil litigation in this district to Garraway and Harvey. Id. at Dkt. No. 16.

On November 13, 2001, Morabito filed a timely motion for summary judgment Id. at Dkt. No. 18. On November 14, the Clerk's Office issued this district's standard summary judgment notice to plaintiffs advising them of their obligations in responding to Morabito's motion. Id. at Dkt. No. 23. Garraway responded on December 7, 2001, and Judge Kahn then notified the parties that the motion would be taken on submit and adjourned the scheduled trial without date. Id. at Dkt. Nos. 25, 27-28. Thereafter, and by order of the Hon. Frederick J. Scullin, Jr., C.J., the case was reassigned from Judge Kahn to Judge Munson on March 27, 2002. Id. at Dkt. No. 30. On August 1, 2002, Garraway wrote the District Court requesting a trial date. Id. at Dkt. No. 32.

According to the Clerk's electronic filing system, on August 5, 2002, a Deputy Clerk requested that the actual file in this case be transferred from Albany to Syracuse. Then, on August 6, apparently presuming her authority to do so, she improperly changed the case designation from a "3" non-prisoner case to a "9" prisoner case, and referred the summary judgment motion then pending before the District Court to this court. See Morabito, 1913, Aug. 21, 2002, Min. Entry. This court subsequently discussed the procedural history with Judge Munson who then referred the motion pursuant to 28 U.S.C. § 636(b)(1)(B). See Fn. 2. After the referral, this court determined that plaintiffs had never substantively responded to the motion nor fully complied with Local Rule 7.1 governing summary judgment motion practice. Accordingly, the court issued a September 9, 2002, order affording them an additional thirty (30) days to respond to Morabito's earlier summary judgment motion and warning them of the possible adverse consequences if they failed to do so. Morabito, 1913, Dkt. No. 33. After the court's order was twice returned as undeliverable because both plaintiffs had failed to comply with L.R. 10.1(b)(2) (notification of address change), the court twice reissued the order, and ultimately reset plaintiffs' response date to December 12, 2002. Id. at Dkt. Nos. 34-37. Because of this procedural history, the court exempted plaintiffs' required response from the December 5, 2002, stay.

On April 9, 2003, Garraway finally responded, submitted no further opposition to the motion, and stated that he intended to rely on his December 5, 2001, response. Id. at Dkt. No. 42. Therefore, the court will issue its report and recommendation to the District Court and the parties.*fn5

B. Garraway v. De Posi (3:02-CV-766)

This civil rights action was originally filed in Binghamton on June 10, 2002, and co-assigned to Judge McAvoy and this court. On June 28, Judge McAvoy issued a conditional dismissal order advising Garraway that his complaint was defective, and directed that he file an amended complaint correcting the defects. De Posi, 766, Dkt. No. 3. After Garraway twice amended his complaint, a summons was finally issued on August 20, 2002, and this court reset the date for an in person Rule 16 Conference for November 18.*fn6 Id. at Dkt. Nos. 4-9. On October 25, De Posi answered through David Bagley, Esq. Id. at Dkt. No. 13.

On October 11 and November 1, 2002, Garraway and De Posi submitted separate Civil Case Management Plans in anticipation of the Rule 16 conference. Id. at Dkt. Nos. 10, 16. On November 7, both a Garraway address change and a Rule 16 conference adjournment notice were filed. Id. at Dkt. Nos. 17-18. The court adjourned the in person conference to February 10, 2003, and Garraway advised that he was then incarcerated in the Broome County Jail. In Garraway's letter, he requested that the court issue a "transport order," requiring someone, presumably the Broome County Sheriff since he was in the Sheriff's custody, to transport him to what he believed was the impending November 18 Rule 16 Conference. Id. at Dkt. No. 17. The adjournment notice and Garraway's change of address obviously crossed in the mail, and it is likely that Garraway did not receive the adjournment notice. Id. at Dkt. No. 18. Unaware of the adjournment, Garraway wrote the District Court on November 13, requesting that the district court issue a "transport order" for the November 18 conference. Id. at Dkt. No. 19. Judge McAvoy rejected his letter-request because he had not served a copy on Bagley, De Posi's attorney, as required by L.R. 5.1(a), and ordered that the request be returned. Id. Naturally, neither this court nor the District Court has the authority to order the Broome County Sheriff's Department to "transport" Garraway to a federal civil conference without Garraway's full compliance with the Sheriff's rules and regulations in that regard.

On November 22, 2002, Garraway sought to file a letter bearing a written notation, "Motion for Injunction," seeking to have the District Court issue an order to the Broome County Sheriff's Department preventing Garraway's transfer to some other facility "during the life" of his cases. Because the letter-motion ignored L.R. 5.1(a) and Judge McAvoy's earlier order and because it failed to comply with L.R. 7.1 governing motion practice, this court directed that the Clerk return it. Id. at Dkt. No. 21.

On November 26, 2002, this court issued an order in this case and in Julian (3:02-CV-848) and Newcomb (3:02-CV-1117), all of which were co-assigned to Judge McAvoy and this court. Id. at Dkt. No. 22. In the order, the court noted that Garraway was unable to attend scheduled Rule 16 conferences because of his incarceration, adjourned the conferences without date pending service of process and the filing of answers, and directed Garraway to notify the court, in writing, once his permanent address had been established. The court also formally denied his request for a transport order. Id. Despite that order, Garraway again wrote the court requesting issuance of a transport order for some unspecified "court appointment," which the court rejected as having been addressed in the November 26 order. Id. at Dkt. No. 23.

On December 5, 2002, Garraway filed a three-page letter with attachments, self-styled as a "motion for emergency injunction." Id. at Dkt. No. 25. Naturally, his letter did not comply with the Local Rules' motion requirements, but the court denied the motion in any event since ...

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